People ex rel. Lake Placid Co. v. Williams

Houghton, J.

(dissenting):

Township IT of the Old Military tract, in which the lots in controversy numbered 314 and 333 are situated, is laid out in lots one-half mile square. The .central and eastern portions of the township are largely covered by the waters of Lake Placid and Mirror lake. In the center of Lake Placid are two islands known as Buck island and Moose island, and the part of the lake on the east side of those islands is known as East lake, and that part on the west is.known as West lake. Lot. 278 is wholly covered by the waters of Mirror lake, except the northwest and southeast part, and although the record does not specifically so state, it is conceded that the relator owns this lot, and that its inn is located in the northwest quarter bn the borders of the lake. While it does not appear in evidence, it is stated in the briefs that the relator also owns lot 277, which is all covered by that part of Lake Placid known as East lake, except the ' southerly half and the extreme northwest portion thereof. There is no proof that the relator owns any part of the two intervening tiers of lots before 314 is *40reached, which is the nearest to the relator’s hotel and grounds. Both the lots in controversy, 314 and 333, are located on Moose island, and the affidavits show that by the ordinary water route from relator’s inn it is three and a half miles to Moose island, and that lot 333 is a mile-further up the lake, and by- direct line, according to the scale of the map printed in the record, it is fully three miles. These lots, therefore, can in no’ possible sense be deemed a part of the club house grounds, separated as they are in distance and by intervening ownership in third persons of at least two tiers of half mile lots. Moose island contains that part of five lots not under water. Relator does not claim to own any part of two of these lots, and has title only to the north part of lot 314. It does, have record title, however, to all of lot 333 as well as lot 313. It appears from the record that the lots in controversy had been subdivided, and that various owners own different portions. The notice of sale states that one Crawford paid the taxes on fifteen acres in the southeast quarter of lot 333, and that one Littlefield had paid the taxes on eighteen acres in the south part of lot 314, and that four acres had been redeemed by Smith and Wicks from- a tax sale. Thus apparently the relator did not own a contiguous tract of land even on Moose island.

Confessedly the land sought to be redeemed is wild land, unfénced and uncultivated, and occupied only temporarily by pleasure parties for picnic and Occasional, camping purposes. Cutting fallen trees and cleaning brush and posting notices and building docks, in view of the location and situation of- the property and its distance from the relator’s inn and grounds, did not, in my judgment, constitute such occupancy as entitles the relator to redeem. .

The facts are wholly different from those in People ex rel. Moynehan v. Gaus (134 App. Div. 80), for there the lots sold for taxes formed a part of an entire -preserve,-and were, contiguous to the portion actually occupied by the owner. The decision went upon the ground that the preserve was an entirety and that the actual occupation of a part carried with it the occupation of the lots which had been sold for taxes:

As much had been done by the owner in an attempt to . occupy, in People ex rel. Keyes v. Miller (90 App. Div. 596), *41as was doné by the relator in the present case, and.it was there held that there was not such occupancy as entitled the owner to notice of redemption.

In Saranac Land & Timber Company v. Roberts (125 App. Div. 333) the authorities are reviewed and the character of occupancy necessary to entitle a person to redeem are discussed, and it would seem quite clear that the occupancy in the present case does not come within the rule laid down.

Nor is People ex rel. Turner v. Kelsey (180 N. Y. 24) to the contrary, for the only question involved in that case was whether the Commission of the Forest Preserve could actually occupy wild lands of which it was the owner, and it was determined that such Commission was as much an occupant of such lands as an individual who actually lived upon them could be. The doctrine applied in that case has no application to individual ownership.

I think the determination of the Comptroller was right and should be affirmed.

Sewell, J., concurred.

Determination of the Comptroller reversed on law and facts, and matter remitted to the Comptroller, with fifty dollars costs and disbursements to relator.